October 18 Commission Session #1: Order (of Motions) in the Court, and Unclassified But Sensitive Material

Our fourth day commences, as expected, with presence matters. Prosecutor Robert Swann discharges what appears to be his recurring duty: establishing that the day’s two no-shows, Mustafa al-Hawsawi and Ramzi Binalshibh, voluntarily and knowingly waived their rights to attend.  (The remaining three accused: Khalid Sheikh Mohammed, Walid Bin Attash, and Abdul Ali Aziz Ali, have come to court today.  Ever the sportsman, KSM is wearing his sporty camouflage hunting vest.)  The prosecutor calls, and questions, our now familiar JTF-GTMO staffer.  The witness then explains that both absentees received the needed advisories, and executed written waivers of their rights.  The court blesses those and we turn to the substantive motions. Of these, Judge Pohl desires to begin with AE14, the government’s request to protect certain unclassified discovery from public disclosure. CDR Walter Ruiz, one of al-Hawsawi’s attorneys, renews his request to adjust the day’s sequence slightly---there are threshold matters he wishes to talk about, including AE32, the defense’s motion for an order to preclude the monitoring of privileged communications; Ruiz also mentions motions to compel the testimony of certain witnesses, who will support other defense requests on the agenda.  Chief Prosecutor Martins notes the government’s analogue to AE32, AE18: that motion will set forth a policy regarding communications, too.  Martins adds that his side's witness, Captain Welsh, plans to testify on AE 18, as well as on matters relevant to several other motions on the docket.  Ruiz generally agrees that it could be worthwhile to hear from Welsh early on.  That approach might not work for Cheryl Bormann, though.  She has other witnesses to call as well, Bormann explains.  Ruiz and James Connell III, lawyer for Aziz Ali, add more suggestions about which motions to hear when, and how.  (The threshold motion, regarding whether the Constitution applies to these proceedings, seems very much to be on the defense’s collective mind.)  Then there’s David Nevin, who says he has no comment if the current schedule is preserved.  But proceeding on the assumption that it won’t be, Nevin notes that AE18 is intertwined with several arguments made by his client, KSM, in respect of AE08---the defense’s motion to dismiss for defective referral.  This logistical chat mercifully concludes, and we finish where, moments earlier, we were about to begin: with AE014. Edward Ryan presents that item, the government’s motion for an order to protect, in the public interest, discovery that is unclassified but sensitive in nature.  The government’s proposal, he says, is nearly identical to that adopted in al-Nashiri, and commonly employed in other cases.  There’s a procedural question: the defense claims that the prosecution has not properly invoked its government information privilege here, Judge Pohl says.  Not so, says Ryan, and cites several authorities as support, including Moussaoui.  Many of the issues in that case were similar to this one, Ryan argues.  Then the prosecutor emphasizes the horrible consequences of the 9/11 attacks, the relevance of which to a discovery motion is lost on Judge Pohl.  He asks Ryan to move on.  The gist is that Ryan anticipates producing roughly 200,000 documents, many of which are quite sensitive---accounts of deaths in the Twin Towers, for example.  Privacy concerns are important here, argues Ryan; so are law enforcement and military concerns, like the identities of current or former U.S. investigators or force protection methods. Judge Pohl notes that Ryan has not dealt only with discovery matters, and not yet mentioned how the government’s proposal might affect the use of information at trial.  The prosecutor replies that documents used in pre-trial and trial hearings can indeed revealed in open court---subject of course to the applicable military commission rules.  Apropos of trial, Ryan goes on, the government’s proposal precludes disclosure of the members’ identities---an “anonymous juror” procedure, only slightly different than that used in SDNY and other federal courts.  The court asks again about timing: why decide juror matters now?  We’re a long way from having members in the courtroom, Judge Pohl says.  Ryan notes that potential members’ names have been included in some documents to date; those need protection in the meantime, certainly.  The prosecutor then recites the factors that govern the use of an anonymous jury in federal court---including one additional factor that applies here with special force: commission members will be active duty soldiers.  The might return to a battlefield, and surely face additional danger if their names have been earlier revealed to the public.  Ryan lastly emphasizes the defects in the defense’s competing proposal to protect unclassified but sensitive material.  Among other things, it would require the government to redact discovery materials extensively, and allow for FOIA-like inquiry into the prosecution’s files.  That would be for a lot of overly burdensome, needless work, he says.  Ryan concludes, and sits down. Connell is up next.  Before he begins, Judge Pohl tells Connell that the court is most interested in pre-trial matters---that is, not those regarding the jury or the use of evidence in open court.  (Of course, he says, the government’s discovery obligation is continuing, and last until adjournment.)  The defense lawyer emphasizes the rules governing the handling of unclassified materials---the defense’s proposed order better conforms to these, Connell says.  But the prosecution’s doesn’t at all.  Take the requirements for invoking the government’s privilege regarding information that is unclassified but sensitive.   The prosecution has not properly invoked that privilege here, Connell argues, among other things because Secretary Panetta has not formally declared the need do so.  And proper invocation is critical because, under commission rules, protective orders can issue only after a claim of privilege is properly made.  The court observes that some material governed by the government’s proposed order isn’t subject to a privilege claim at all.  What does Connell say to that? Before he can answer, David Nevin asks to interject---about what, we do not know.  Before his topic becomes clear, Judge Pohl notes the time and calls the mid-morning break.